Madhya Pradesh High Court
The State Of M.P. vs Shivnarayan @ Tunda And Anr. Judgement ... on 29 August, 2013
Author: B. D. Rathi
Bench: B. D. Rathi
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Cr.A. No.1174/2003
State of M.P...........................................................................Appellant
Vs.
1. Shivnarayan alias Tunda, aged 30 years
2. Lakhan S/o Himmat Balahi, aged about 32 years
Both R/o Village Kalya Khedi, P.S. Narmada
Nagar, District East Nimad, Khandwa ................Respondents
For the petitioner : Shri Yogesh Dhande, Government Advocate
For the respondents: None
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Present: HONOURABLE SHRI JUSTICE AJIT SINGH
HONOURABLE SHRI JUSTICE B. D. RATHI
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JUDGMENT
(29.8.2013) The following judgment of the Court was delivered by :
B. D. Rathi, J.
This appeal has been preferred under Section 378(1) of the Code of Criminal Procedure (hereinafter referred to as "the Code") being aggrieved with the judgment dated 15.1.2003 passed by I Additional Sessions Judge, East Nimad, Khandwa in Sessions Trial No.138/2002, whereby respondents have been acquitted of the offence punishable under Section 302/34 of the Indian Penal Code ("IPC" for short).
2. Prosecution case, in brief, is that on 19.6.2002 at about 7 pm Sunderlal, husband of Mamtabai (PW8) had left his home saying that he was going to give cotton seeds to his partner, but when till morning of 20.6.2002 he did not return, Mamtabai informed Sevakram, cousin of Sunderlal and at 7:30 am, one Rukhadia informed Sevakram that dead body of Sunderlal was lying at Ajnaal river. Upon this, Sevakram, Shriram and Babulal reached at the spot and found that dead body of Sunderlal was lying there. Thereafter, Sevakram informed about the incident at Police Outpost Punasa upon which, Morgue Intimation No.4/2002 (Ex.P/6) was registered. Police Outpost Punasa informed at Police Station Narmada Nagar about the incident and, accordingly, Morgue No.13/2002 (Ex.P/7) was recorded. First Information 2 M.Cr.C. No.1174/2003 Report (Ex.P/27) was registered and after completion of investigation, charge-sheet was filed.
3. Learned Government Advocate, while making reference to the evidence on record, submitted that the learned trial Court has not properly appreciated the same and the impugned judgment deserves to be set aside and the respondents are liable to be convicted for the offence under Section 302 read with 34 of the IPC.
4. Having regard to the arguments advanced by the learned Government Advocate, impugned judgment and record of the trial Court were perused.
5. Trial Court has rightly held that the prosecution could not prove the motive behind the offence as existence of enmity between the respondents and the deceased was not established from the evidence on record. Moreover, no other reason could be established by the prosecution for commission of the offence by the respondents.
6. The entire case of the prosecution was based upon circumstantial evidence and to complete the chain, three sets of evidence were produced viz. (a) evidence of last seen, (b) amount of Rs.570/- was seized at the instance of respondent no.1. which was given to deceased by Keshav (PW1) and (c) blood stained clothes and Chappal belonging to respondent no.1 and blood stained Danda belonging to respondent no.2, were seized from the spot.
Evidence of Last Seen
7. To establish the evidence of last seen, Mamtabai (PW8), wife of the deceased, Keshav (PW1), Lakhanlal (PW2), Ghanshyam (PW3), Premsingh (PW4) and Gajraj Singh (PW11) were examined. Mamtabai deposed that her husband had left the house saying that he was going to give cotton seeds to his partner and for bringing money from Navalgaon. The trial Court disbelieved her evidence that he had gone for Navalgaon as the same was not mentioned in the Morgue Intimation (Ex.P/6), which was recorded on the basis of information given by her to Sevakram. The evidence of other witnesses to the effect that deceased and respondents had come to Navalgaon between 11 to 12 p.m. on the fateful night, was disbelieved due to material contradictions, omissions and exaggerations. Moreover, their evidence, being quite unnatural, did not inspire confidence of the trial Court. That apart, Mamtabai testified that her husband had left the house in the evening at about 6 - 6.30 p.m. after taking meals. As per medical jurisprudence, the process of digestion starts after three hours. Dr. Smt. 3 M.Cr.C. No.1174/2003 Krishna Dadu (PW4), who performed the autopsy, opined that semi-digested food was found in his abdomen. As per the witnesses of last seen mentioned above, they had seen the deceased with the respondents at Navalgaon between 11 to 12 p.m. Therefore, presence of semi-digested food in his abdomen, reveals that Sunderlal had died within three hours of his taking last meals i.e. 6 to 6.30 p.m. This belies the statement of witnesses of last seen that they had seen him with the respondents at 11 to 12 p.m at Navalgaon.
Evidence as to seizure of Rs.570/-
8. This set of evidence was also disbelieved by the trial Court because the witnesses of memorandum and seizure viz. Babulal (PW9) and Shivram (PW10) were the real brothers of the deceased and were apparently interested witnesses. That apart, it was also not proved by the prosecution that this amount was given by Keshav (PW1) to the deceased. Further, Keshav was also not made to identify the said amount.
Evidence pertaining to seizure of blood stained articles of respondents from the spot
9. The trial Court found that it was quite unnatural that anyone would leave his bloodstained articles near the dead body after committing the murder. As per the Forensic Science Lab Report (Ex.P/29), though Articles "A", "B" and "C" viz. Pant, Chappal and Lathi were found to contain blood, yet it could not be ascertained that it was human blood. Moreover, blood grouping could not be done. Further, there was nothing on record to establish that the said articles belonged to the respondents.
10. In the aforesaid premises, the trial Court found that the chain of circumstantial evidence was not complete and the prosecution had failed to prove its case beyond a reasonable doubt. We agree with the findings recorded by the trial Court.
11. It is well settled that the judgment of acquittal should not be disturbed unless the conclusions drawn on the basis of evidence brought on record are found to be grossly unreasonable or manifestly perverse or palpably unsustainable.
12. Taking into consideration the reasons assigned on the face of evidence on record establishing the aforesaid facts and circumstances, the view taken by the learned trial Court was apparently a possible view. As such, no interference is called for with the judgment of acquittal in question.
4 M.Cr.C. No.1174/200313. The appeal, being devoid of merit and substance, stands dismissed and the impugned judgment of acquittal is hereby affirmed. Bail bonds of the respondents stand discharged.
14. Copy of the judgment along with the record be sent to the trial Court for information and compliance.
(AJIT SINGH) (B. D.
RATHI)
JUDGE JUDGE
(and)